## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 12 1997 

### PATRICK FISHER Clerk 

### PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. BUDDIE LEE SMARTT, Defendant-Appellant, No. 96-8125

Appeal from the United States District Court for the District of Wyoming (D.C. No. 93-CR-29-01B)

SUBMITTED ON THE BRIEFS: David T. Duran, Denver, Colorado, for Defendant-App ellant. David d. Freudenthal, United States Attorney, and D avid A. Kubichek, Assistant United States Attorney, Casper, Wyoming, for Plaint iff-Appellee.

Before SEYMOUR , Chief Judge, PORFILIO and MURPHY , Circuit Judges.

SEYMOUR , Chief Judge.1 After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ause is therefore ordered submitted without oral argument.

2Nearly two years passed between Mr. Smartt’s guiltyplea and his sentencing because he was permitted to have schedul ed surgery on his legs. Mr. Smartt suffers from degenerative joint disease and also has had several injuries to his legs.

- 2 - Defendant Buddie Lee Smartt appeals the denial of h is motion under 18 U.S.C. § 3582(c) for a modification of his term of imprisonment. We affirm. 1

I Mr. Smartt was charged with manufacturing, distributing, and possessing with intent to manufacture and distribute more than100 marijuana plants in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(v ii) (count I), and using or carrying a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1) (count II). On June 18, 1 993, Mr. Smartt pled guilty to count I. Count II was dismissed at the time his pl ea was entered. On February 10, 1995, Mr. Smartt was sentenced to a 60 month mandatory minimum period of incarceration. 2

Mr. Smartt did not appeal his sentence. In 1996, h e filed a motion for resentencing pursuant to 18 U.S.C. § 3582(c)(2). H e claimed the district court- 3 -

was authorized to reduce his sentence for two reaso ns. First, he asserted he was entitled to a reduction because his sentencing rang e was subsequently lowered by the United States Sentencing Commission when it alt ered the way drug quantities based on a specific number of marijuana plants are to be calculated. See U.S.S.G. App. C, Amendment 516 (Nov. 1995) (amending U.S.S.G . § 2D1.1(c)) (authorized for retroactive application by U.S.S.G. 1B1.10(c) (Nov. 1995)). Second, Mr. Smartt asserted that his sentence shoul d be modified because his medical needs were not being met at his place of co nfinement. The district court denied Mr. Smartt’s motion, addressing only his contention regarding the change in the guideline range. The district court conclud ed that Mr. Smartt had not been sentenced using a guideline range but rather in acc ordance with a statutory mandatory minimum period which had not been reduced . Consequently, the court held he was ineligible for relief under 18 U.S.C. § 3582(c)(2).

Mr. Smartt filed a second motion for reduction of s entence, repeating the arguments raised in the first motion and adding cla ims that his medical condition warranted a reduction under 18 U.S.C. § 3553(b) andthat the district court was permitted to depart from the mandatory minimum sent ence under the “safety valve” provision of section 3553(f). Both subsecti ons (b) and (f) of section 3553 were in effect, but not raised, at the time of Mr. Smartt’s original sentencing. The- 4 -

district court reiterated its conclusion that Mr. S martt was ineligible for a reduction based on the guidelines amendment. The c ourt further held that Mr. Smartt was not eligible for a sentence reduction ba sed on the safety valve provision of section 3553(f) because he failed to s atisfy two of the five requirements of that section.

II On appeal, Mr. Smartt contends the district court e rred by failing to give him the benefit of the amended guideline, and by fa iling to apply sections 3553(b) and (f) to reduce his sentence from the mandatory m inimum. The government responds that the district court correctly denied M r. Smartt’s motion for sentence reduction under section 3582(c)(2), and that the co urt lacked jurisdiction to modify Mr. Smartt’s sentence by application of sect ion 3553(b) or (f). We agree with the government.

“We review de novo the district court’s interpretat ion of a statute or the sentencing guidelines.” United States v. Acosta-Ol ivas , 71 F.3d 375, 377 (10th Cir. 1995). “We [also] review de novo the districtcourt’s legal determination that it possessed jurisdiction to modify Defendant’ s sentence.” United States v. Blackwell , 81 F.3d 945, 947 (10th Cir. 1996). “A district c ourt does not have- 5 -

inherent authority to modify a previously imposed s entence; it may do so only pursuant to statutory authorization.” United State s v. Mendoza , 118 F.3d 707, 709 (10th Cir. 1997).

Because Mr. Smartt’s motion for sentence reduction is not a direct appeal or a collateral attack under 28 U.S.C. § 2255, “the viability of his motion depends entirely on [18 U.S.C. § 3582(c)].” United States v. Trujeque , 100 F.3d 869, 870 (10th Cir. 1996). Section 3582(c) provides that a “court may notmodify a term of imprisonment once it has been imposed except” in th ree limited circumstances. 18 U.S.C. § 3582(c) (emphasis added); see Blackwell , 81 F.3d at 947-48. First, upon motion of the Director of the Bureau of Prison s, a court may reduce the term of imprisonment if it finds special circumstances e xist. 18 U.S.C. § 3582(c)(1)(A)(i), (ii). Second, a court may modifya sentence if such modification is “otherwise expressly permitted by s tatute or by Rule 35 of the Federal Rules of Criminal Procedure.” Id. § 3582(c)(1)(B). Finally, a court may modify a sentence if “a sentencing range . . . has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994 (o).” 18 U.S.C. § 3582(c)(2).- 6 -

Mr. Smartt posits three grounds which he argues warrant resentencing: his medical condition, the safety valve provision of se ction 3553(f), and a subsequent amendment of the guidelines. Unless the basis for resentencing falls within one of the specific categories authorized by section 35 82(c), the district court lacked jurisdiction to consider Mr. Smartt’s request. We assess each possible basis for sentence reduction.

A. Modification for special circumstances Mr. Smartt is not eligible for a special circumstan ces reduction based on his medical condition. Section 3582(c)(1)(A), which ar guably might encompass this claim, requires that a motion be brought by the Dir ector of the Bureau of Prisons. This requirement was not met.

B. Modification expressly permitted by statute or Ru le 35 Mr. Smartt is also ineligible for a reduction undersection 3582(c)(1)(B). That section authorizes a court to “modify an impos ed term of imprisonment to the extent otherwise expressly permitted by statute or by Rule 35.” Mr. Smartt does not assert that any of the requisite condition s for Rule 35 relief are present. See Blackwell , 81 F.3d at 948-49 (describing applicability of Ru le 35). Rather, he argues that the safety valve provision of 18 U.S .C. § 3553(f), which requires3 The safety valve provision provides:

“the court shall impose a sentence . . . without regard to any statutory minimum, if the court finds at sentencing. . . that (1) the defendant does not have more than 1 crimina l history point, as determined under the sentencing guideline s; (2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous we apon (or induce another participant to do so) in connection with th e offense; (3) the offense did not result in death or serious bodily injury to any person; (4) the defendant was not an organizer, leader, man ager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a cont inuing criminal enterprise, as defined in section 408 of the Contro lled Substance Act; and (5) not later than the time of the sentencing heari ng, the defendant has truthfully provided to the governmentall information and evidence the defendant has concerning the offen se or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no rel evant or useful other information to provide or that the Government is al ready aware of the information shall not preclude a determination by t he court that the defendant has complied with the requirement. 18 U.S.C. § 3553(f) (emphasis added). The district court found Mr. Smartt failed to carryhis burden to show that he had not possessed firearms in connection with th e offense, § 3553(f)(2), and that he had truthfully provided to the government a ll information and evidence concerning the offense, § 3553(f)(5). Given our de termination that the district court lacked jurisdiction to consider Mr. Smartt’s entitlement to a safety valve reduction, we do not address the merits of the district court’s decision. - 7 - departure from the mandatory minimum in some circum stances, 3 and section4 Section 3553(b) permits a court, at sentencing , to depart from the

prescribed sentencing range for a mitigating circum stance of a kind not adequately considered by the Sentencing Commission. The district court did not address this argument, and we hold infra that it la cked jurisdiction to do so. - 8 - 3553(b), which might encompass Mr. Smartt’s medical condition, 4 are both statutes that expressly permit modification of a se ntence and are applicable to him. We disagree.

We read section 3582(c)(1)(B) to permit modificatio n of an imposed term of imprisonment only where a statute expressly prov ides for reduction of a previously imposed sentence. That is what Rule 35 provides, and it do es not make sense to us that Congress intended section 358 2(c)(1)(B) to mean that any statute permitting a district court to consider spe cial factors at sentencing , which is what section 3553(b) and (f) do, could be utiliz ed to modify a sentence after it becomes final.

The plain language of section 3553 supports this co nclusion. The entire section is directed at the initial imposition of a sentence. Mr. Smartt was sentenced in 1995 and has established no jurisdicti on for resentencing. See infra Part C. This case is therefore distinguishable fro m cases permitting the application of the safety valve provision at resentencings where the district court5 As we discuss in Part III, the circumstances of thi s case are very unusual.

The safety valve provision of 18 U.S.C. § 3553(f), which authorized the sentencing court to disregard the statutory minimum , was in effect at the time Mr. - 9 - has otherwise been authorized to set the sentence anew. See , e.g. , United States v. Clark , 110 F.3d 15, 16 (6th Cir. 1997) (resentencing jur isdiction based on section 3582(c)(2)). Cf. United States v. Williams , 103 F.3d 57, 58 (8th Cir. 1996) (per curiam) (government may seek section 555 3(e) reduction of sentence when court has resentencing jurisdiction under 3582 (c)(2)). We hold that neither section 3553(b) nor (f) provides for modification o f an imposed sentence within the meaning of section 3582(c)(1)(B). The districtcourt therefore lacked jurisdiction to consider the merits of applying the safety valve provision.

C. Subsequent lowering of sentencing range After Mr. Smartt was sentenced, the marijuana plant/weight equivalencies in the Sentencing Guidelines were modified. If the modifications were applicable to Mr. Smartt, they would result in a lower sentenc ing range, see U.S.S.G. App. C, Amendment 516, and Mr. Smartt would be entitled to a reduction under section 3582(c)(2). However, Mr. Smartt was not sentenced pursuant to the guidelines. Rather, he was sentenced to a statutory mandatory m inimum which must be imposed when a defendant is convicted of possessionof “100 or more marijuana plants regardless of weight .” 21 U.S.C. § 841(b)(1)(B)(vii) (emphasis added). 5Smartt was sentenced. Nonetheless, that provision was not addressed by the

parties or the court and Mr. Smartt was sentenced a s though it did not exist. - 10 - The Sentencing Commission’s subsequent amendment of the guideline plant/weight equivalencies did not amend the statut e requiring the mandatory minimum sentence for possession of 100 or more mari juana plants. See United States v. Novey , 78 F.3d 1483, 1486 (10th Cir. 1996) (“[T]he Sente ncing Commission does not have the authority to override or amend a statute.” (citing Neal v. United States , 116 S. Ct. 763, 766, 768 (1996)), cert. denied, 117 S. Ct. 2407 (1997). Mr. Smartt was thus ineligible for a reduction of sentence under section 3582(c)(2). See United States v. Mullanix , 99 F.3d 323, 324 (9th Cir. 1996) (defendant not entitled to a reduction in sen tence pursuant to Amendment 516 because original sentence was the statutory min imum term of 60 months), cert. denied , 117 S. Ct. 1457 (1997); United States v. Marshall , 95 F.3d 700, 701 (8th Cir. 1996) (per curiam) (where defendant posse ssed over 100 marijuana plants, Amendment 516 could not lower defendant’s s entence below the 60-month statutory minimum).

III The safety valve provision in section 3553(f) had n ot yet been enacted when Mr. Smartt pled guilty. However, due to the l ong delay between his guilty- 11 -

plea and his sentencing, see supra note 1, the provision became effective priorto Mr. Smartt’s sentencing and could have been conside red then by the district court had it been raised. See United States v. Torres , 99 F.3d 360, 362 (10th Cir. 1996) (“safety valve exception applies to all sentences i mposed on or after September 23, 1994"), cert. denied , 117 S.Ct. 1273 (1997). Mr. Smartt contends the probation department had a continuing duty to updat e his presentence report and should have considered the applicability of the saf ety valve provision, and that his counsel was ineffective for failing to raise it. W e have no jurisdiction under section 3582(c) to consider these issues. If Mr. S martt wishes to raise the failure of his counsel and the district court to apply sect ion 3553(f) at the time of his original sentencing, he must do so in a petition un der 28 U.S.C. § 2255.

We AFFIRM the district court’s dismissal of Mr. Smartt’s moti on under 3582(c) for sentence reduction.